Possible SupCo nominee in the spotlight at hearing

[May 13, 2009]  CHICAGO (AP) -- When a federal appeals court meets in Chicago to take up a bitter dispute over alleged religious discrimination by a condo association, the judges themselves could end up as the main attraction.

President Barack Obama is weighing possible candidates to fill the U.S. Supreme Court seat of retiring Justice David Souter and two members of the 7th U.S. Circuit Court of Appeals are considered possible picks.

Judge Diane P. Wood, 58, a former University of Chicago law professor like Obama, is getting the biggest share of the spotlight. And Wednesday's hearing focuses on a case in which she wrote a dissenting opinion.

Judge Ann Claire Williams, 59, a former federal prosecutor, is also getting some attention as a possible Supreme Court nominee.

Oral arguments before the full appeals court are set for Wednesday in what has come to be known as "the mezuzah case."

A mezuzah is part of Jewish religious tradition -- a small scroll held in a metal, plastic or glass case a householder affixes to the door frame.

In the case before the court, the Shoreline Towers Condominium Association repeatedly removed a mezuzah from the front door of Chicago condo owner Lynne Bloch. The association said it violated a rule against placing any objects, religious or otherwise, on doors or in common halls.

Bloch, who helped write the rule, sued, saying she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out the case and the appeals court affirmed his decision 2-1.

Chief Judge Frank Easterbrook, writing for himself and Senior Judge William Bauer, said the rule was "neutral" and "potentially affects every owner" without regard to religion and thus was not discriminatory.

"It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants," he wrote.

Wood dissented, saying it could been seen as a violation of federal housing law because observant Jews would be unable to live in a condo with no mezuzah.

"Thus in a real sense, Hallway Rule 1 makes condominium units at Shoreline Towers functionally unavailable to observant Jews like the Blochs and, if it could be enforced, the rule would effect their constructive eviction," Wood wrote.

"The association might as well hang a sign outside saying, 'No observant Jews allowed,'" she wrote. She said Bloch and her family should be able to take their case to trial.

New city and state laws and a new condo association rule give observant Jews the right to put up a mezuzah.

But the question of damages for discrimination remains to be resolved.

Wood's broad definition of religious discrimination in the case should not be viewed as either a liberal or a conservative opinion, said professor Mark Tushnet of Harvard University Law School.

"Lots of conservatives like broad definitions of religious discrimination, some liberals do as well," Tushnet said. But Wood's view could reflect something Obama said he hoped to find in his judicial nominees -- empathy, Tushnet said.

"It helps a lot to see what the experience is from the point of view of the person claiming to be discriminated against, from the point of view of an evangelical Christian who may not be able to hand out leaflets or an observant Jew who may be prevented from putting a mezuzah on his door," Tushnet said.

Some conservatives are already criticizing Wood.

The Judicial Confirmation Network, established to help former President George W. Bush's nominees get approved by the Senate, has blasted her as too liberal.

Among other things, it cited her 2001 opinion in the National Organization for Women v. Scheidler case that upheld a lower court order banning anti-abortion groups from using force to blockade clinics. The Supreme Court reversed it.

But legal scholars say there is nothing extreme about her views.

"She's obviously in the broad center of American constitutional law," said professor Robert W. Bennett of Northwestern University Law School.

Wood has often been cast as a counterbalance on the appeals court to Easterbrook, as she was in the mezuzah case, and to another conservative judge, Richard A. Posner.

All three have been faculty members at the University of Chicago law school. But professor Geoffrey R. Stone of the law school said that as much as they disagree at times, the three judges share a mutual respect.

"I've had many conversations with Posner and Easterbrook in which they have commented to me that Diane is a terrific judge," he said. "That doesn't mean that they always agree with each other. They don't."

"But they have a civil and mutually respectful relationship in which they can disagree without being disagreeable," he added.

[Associated Press; By MIKE ROBINSON]

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